The Founders On Citizenship And Immigration

by Edward Erler, Thomas West, and John Marini

Last year’s immigration debate left quite an impression on the body politic. It certainly left an impression on the Congressional switchboard operator. But for all the sturm und drang, the discussion barely left the realm of conventional partisan politics. We spent a great deal of time arguing fences and paths to citizenship and ID cards, and very little time on what citizenship means, and what it means for immigration.

We again forgot that the Founders thought about these problems when setting up the country. We also forgot that the Progressives had their own vision for immigration, thoroughly at odds with the Founders.

Into this breach of historical myopia steps the Claremont Institute, with The Founders on Immigration and Citizenship, a collection of four essays by Institute scholars.

While the Claremont Institute is commonly thought of as a conservative think-tank, it’s one with a unique point of view. Stressing the unique and original ideas of America’s Founders, it specializes in what has come to be called Originalist legal and philosophical thought. For Claremont, the great tragedy of American history isn’t the 60s, or even the 70s. It is instead the betrayal and subversion of those ideas by the post-Civil War Progressives.

For the Founders, immigration was to be based on the kind of citizen an immigrant was likely to become. That men had a natural right to emigrate was assumed. That a society had the right, by virtue of the social compact, to decide whom to accept, was just as evident. Included in that calculation was his moral character. Immigrants from more free societies were more likely to have the habits of thought of free men, thus more likely to become better citizens. Those from more despotic regimes would have to be accepted in lower numbers, hopefully to be dispersed throughout society to help speed assimilation. They were more likely to be comfortable with a government dispensing favors. Either way, emigration and acceptance attached to the individual, not to a group identity.

The Progressives planned to re-shape the government into a centralized administrative state, informed not by reason but by science. The saw the government not as a means for securing individual natural rights, but rather for creating rights, and distributing their fruits on the basis of group identity. Making common cause with the nascent socialists and eugenicists, they saw race and class as the most important defining groups. (Convicted by their own writings, the Progressives resented and belittled the Constitution’s restrictions on their plans.) To the Progressives, it made perfect sense to choose immigrants by race and class, rather than culture and ideals.

The book contains four essays: and introduction, a legal case against birthright citizenship, an examination of the historical effects of immigration policies, and the Progressives and immigration. The most legal is Ed Erler’s attack on birthright citizenship. Policy-wise, Erler is worried about anchor babies serving as the bridge to transplant entire Mexican towns to the US, but he makes two critical points. First, the notion of birthright citizenship derives from British common law, which in turn derives it from the feudal relationship between lord and serf. The British held that to be born in Britain was to owe eternal allegiance to the Crown. Put that way, it’s not surprising that a bunch of revolutionary separatists would have a dim view of that basis.

Second, the authors of the 14th Amendment, which is quoted in favor of birthright citizenship, never intended for mere geography to determine citizenship. Children of visiting diplomats, for instance, and members of semi-sovereign Indian tribes, were not considered to be subject to the jurisdiction of the US, in the Amendment’s own language. Whether or not 100 years of contrary interpretation can or should be overturned is another matter.

The two other essays persuasively set out the differences between the Founders and the Progressives, relying largely on their own words. Impressive because they need to show not only the differences, but also their radical nature. West also has a disturbing answer to a question that has bothered me for some time: why was an American population that had soundly rejected Progressive revisions in the 19th Century willing to put up with them in the 20th?

The entries overlap a little, repeating primary sources and quotes, especially from the Founders. While a bit tedious, this actually serves the book’s purposes, reiterating what sources are important.

More frustrating is the number of secondary sources cited for primary quotes, unnecessarily complicating efforts to trace sources, or to check their context. Given Claremont’s reputation for probity, it’s unthinkable that the quotes are unrepresentative of their authors’ thinking. It represents un-Claremont-like editorial sloppiness.

Claremont has no specific policy recommendation at the end of the book, at least not an explicit one. Ed Erler would be happy to get rid of birthright citizenship, and there’s no question that the Claremont guys are uncomfortable with the transplantation of whole sections of Mexican society to the United States. Essentially, the country is setting itself up for trouble, clearly unwilling and possibly unable to assimilate this population into American political and economic ideals.

To their credit, they recognize that this is not, at heart, a partisan issue. Liberal Democrats who want votes have conspired with Republicans, who cater to business’s desire for cheap labor, to keep the border open. Likewise, both parties contributed to the racist revisions of the immigration laws in 1924. Indeed, when the Wall Street Journal’s Dan Henninger said that for many conservatives, the issue was culture, not economic, it represented a split between traditional Republican allies (and a comment that the traditionalists should have embraced, rather than defensively accusing Henninger of accusing them of racism). And while conservative activists may have forced stronger enforcement provisions into last year’s comprehensive bill, it succeeded in peeling away enough liberal Democrats to help defeat the measure.

As usual, the Claremont Institute shows that for those willing to listen, the Founders have something valuable to say on a topic of current interest.